M.Y.EQBAL,J. - (1.) IN this application under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari for quashing the demand notice dated 4.3.2006 relating to assessment year 1991 -92 issued by the Deputy Commissioner, commercial Taxes, Urban Circle, Jamshedpur, pursuant to the order dated 27.2.2006 passed under the provision of Section 19(2) of the Bihar Finance Act, 1981 and further for quashing the entire proceedings of reopening of the assessment proceedings on the basis of audit objection in respect of assessment which was completed in 1996.
(2.) THE petitioner's case, inter alia, is that for the assessment year 1991 -92, the petitioner filed returns under the Bihar Finance Act, 1981 as well as Central Sales Tax Act, 1956 and furnished all documents, books of accounts, turnover, etc before the Deputy Commissioner of Commercial Taxes, Jamshedpur. The assessment proceeding relating to the Bihar Finance Act was completed and the Assessing Officer passed order of assessment on 24.1.1996. As the petitioner already paid the admitted tax, no further demand of tax was raised by the respondents. It is stated that after the expiry of 5 years from the date of assessment, the petitioner received a notice dated 28.9.2000 issued under Section 19(1) of the State Act whereby a copy of the order of the audit objection was served upon the petitioner and was asked to show cause as to why an amount of Rs. 24,19,385/ - be not levied on the basis of such audit objection. Pursuant to the aforesaid notice, the petitioner filed his show cause, but the matter was kept pending for about four years. On 23.12.2004, the petitioner was served with a notice for giving personal hearing and thereafter the impugned order dated 23.3.2006 by way of revised assessment order under Section 19(2) of the Act was passed and a fresh demand was raised. In the counter affidavit filed by the respondents, it is stated that after the original assessment order was passed, an audit team of Accountant General, Bihar, audited the assessment order and found that the dealer was allowed exemption on Rs. 3,12,47,916/ - being the amount of goods consumed by itself during the course of execution of works contract. Such goods were purchased on payment of tax but no declaration in Form -IX -C along with other evidence were submitted. The entire materials received from outside the State or purchased within the State without payment of tax is leviable to tax as specified under Section 12 of the Act It is stated that the petitioner never produced the books of account when the matter was heard on the ground that the same was dumped in its Head office after assessment was over. The respondents' further case is that the original assessment order was passed on 24.1.1996 and the proceeding of re -assessment was opened on 14.9.2000 within the limitation period of 8 years.
(3.) MR . M.S. Mittal, leaned counsel appearing for the petitioner -assessee, assailed the impugned revised assessment order only on the ground that the assessment proceedings cannot be reopened on the basis of audit objection, as the same does not amount to an 'information' within the meaning of Section 19(1) of the Bihar Finance Act, 1981. Learned Counsel submitted that the impugned order amounts to change of opinion of the subsequent incumbent in the post of Deputy Commissioner of Commercial Taxes on the same set of facts and law which were available even at the time of passing the order of assessment. Learned Counsel submitted that the impugned order is, therefore, in gross violation of principle of natural justice and contrary to the scheme of Article 366 of the Constitution of India. Learned Counsel relied upon the decisions rendered in the cases of Eureka Forbes Ltd. v. State of Bihar and Ors. 2000(119) STC 460, Shree Bihariji Mills Ltd. and Anr. v. The State of Bihar and Anr. 1988(71) STC 293 and Bhimraj Madanlal v. State of Bihar and Anr. 1984(56) STC 273.;